ML20033A331
| ML20033A331 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 11/23/1981 |
| From: | Thessin J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8111250193 | |
| Download: ML20033A331 (10) | |
Text
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i 11/23/81 UNITED STATES OF AttERICA
^
NUCLEAR REGULATORY C0ltitISSION 6 d f &
BEFORE THE AT0!!IC SAFETY AND LICENSING BOARD
/
1 liova 41981w 7
w M f @ hy In the Itatter of CLEVELAND ELECTRIC ILLijftINATING Docket Nos. 50-440 OL hkl p
C0tiPANY, E' AL.
50-441 OL
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
RESPONSE OF NRC STAFF TO PETITION OF OHIO CITIZENS FOR RESPONSIBLE ENERGY FOR WAIVER OF COMMISSION RULE I.
INTRODUCTION On November 3,1981, Intervenor Ohio Citizens for Responsible Energy
("0CRE") filed a petition under 10 C.F.R. 5 2.758(b) for waiver of 10 C.F.R. 6 50.13, concerning attacks and destructive acts ey enemies of the United States.M OCRE was concerned about the "potentially disastrous effects" of electromagnetic pulses on the safe operation of I
the Perry Nuclear Power Plant.
In this response, the NRC Staff opposes this petition for a waie of the Commission's rules because OCRE has shown neither "special circumstances with respect to the subject matter of [this] particular proceeding,"U nor that the application of y
Ohio Citizens for Responsible Energy's Petition for Waiver of Commission Regulation 10 C.F.R. 9 50.13 and Resubmission of tt Contention 14, dated November 3,1981 ("0CRE Petition").
2]
10 C.F.R. 9 2.578(b).
/ DESIGNATED ORIGINAIJj Certifica By 8111250193 811123' V
PDR ADOCK 05000440
D - i the rule in this case "would not serve the purpose for which the rule...
wasadopted."E II.
BACKGROUND
' On July 6,1981, OCRE moved the Licensing Board to accept a late-filed contention which asserted "that Applicant has not provided adequately for the occurrence of electromagnetic pulses ("EMP"), a phenomenon generated by nuclear weapon explosions."O As 0CRE alleged, a high altitude detonation of nuclear devices would create EttP, which
" wrecks havoc by 17ducing current or voltage through electrically conducting materials."E Because Intervenors believed that the Perry plant would rely on computers, transistorized control systems, and other electrical components to safely shut down its reactors, Intervenors feared that a high altitude detonation would " incapacitate the [ plant's]
y Id.
y Ohio Litizens for Responsible Energy Motion for Leave to File its Contention 14, dated July 6,1981, at 1 ("0CRE liotion").
5/
_Id., citing Science News, Vol.119, May 9,1981, at 300.
t
y safety systems, leave operators with no control, and lead to core degradation."O Both the ApplicantU and NRC StaffE opposed the petition on the grounds that it constituted an impennissible attack upon 10 C.F.R. 5 50.13, which states:
"An Applicant for a license to construct and operate a production or utilization facility, or for an amendment to such license, is not required to provide for design features or other measures for the specific purpose of protection against the effects of (a) attacks and destructive acts, including sabotage, directed against the facility by an enemy of the United States, whether a foreign government or other person, or (b) use or deployment of weapons incident to U.S. defense activities."
The Staff had also contended that the late-filed contention had not met the requirements of 10 C.F.R. $ 2.714(a).
The Licensing Board, on October 2,1981, ruled that the contention should not be admitted because it was barred by 10 C.F.R. Q 50.13.E y
OCRE Motion, Id., at 2.
d 7/
Applicants' Answer to Ohio Citizens for Responsible Energy's Motion for Leave to File Contention 14, dated July 20, 1981.
8]
NRC Staff Response to Hotion of OCRE for Leave to File its Contention No.14, July 28,1981.
y Menorandum and Order Concerning Ohio Citizens for Responsible Energy's Motion for Leave to File a Construction about Electronagnetic Pulses; and Possible Readmission to Discovery of the ATWS Contention, dated October 2,1981.
However, on October 7,1981, the Licensing Board expressed, in a
~
!!emorandu:a _/- to the Commission, its concern that the 7rAlem of EliP may 10 be a serious, but manageable problem for power reactors.
On November 3,1981, OCRE filed the petition for waiver of the Comission's rule,10 C.F.R. 50.13.
III. DISCUSSION OCRE petitions for the waiver of the application of 10 C.F.R. 6 50.13 in this proceeding.
Such petitions are governed by 10 C.F.R.
$ 2.758, which states that "the sole grounds" for such petitions "shall be that special circumstances with respect to the subject matter of the particular proceeding are such that application of the rule...would not serve the purposes for which the rule...wai, adopted."E As the Commission has made clear, the relief requested by a petition under 6 2.758 is not to be granted lightly but is available only in unusual and compelling circumstances.E 10 C.F.R. 9 2.758(b) also requires that the petitioner file an affidavit which identifies:
1 (a) the specific aspects of the subject matter of the proceeding as to which the application of a rule would not serve its purposes, and
-10/ Memorandum to the Commission Concerning Ohio Citizens for Responsible Energy's itotion for Leave to File a Contention about Electromagnetic Pulses, dated October 7,1981.
11/ 10 C.F.R. 5 2.758(b).
(Emphasis added); Metropolitan Edison Co.
(Three Mile Island, Unit 1), CLI-80-16,11 NRC 674, 675 (1980).
12/ Northern States Power Company (Monticello Nuclear Generating Plant, Unit 1), CLI-72-31, 5 AEC 25, 26 (1972).
. 4 (b)
"with particularity" the special. circumstances alleged to justify the waiver in a particular proceeding.
The Licensing Board, relying on the petition, the affidavit and any responses, is to determine whether petitioner has made a prima facie case for waiving the application of the rule in question.I3,/
Viewed in its best light, OCRE's petition only vaguely identifies the subject natter of the proceeding concerning which application of the rule muld not serve its intended purpose - the effect of E!!P on the facility's instrumentation and controls impairing the ability of the applicants to assure safe operation including shutdown. Most significantly, however, the petition is patently defectiv? in showing, with particularity, the special circumstances relating to this proceeding or this facility which warrtnt so drastic a measure as waiving the applicability of a rule.
None of the materials cited by OCREN even intimates how the problems associated with EMP are peculiar to the Perry plant.
Instead, the documents referenced make clear that no particular site would be more adversely affected by EMP than any other.
In fact, the cited information supports the conclusion that the problem of EMP is a generic one, as likely to affect a broad area of the country as to affect any one site. The Science News article that Intervenors reference indicates that if a nuclear bonb exploded 200 miles above the country 13/ 10 C.F.R. 5 2.758(c) and (d).
-14/ Science News, fiay 9,1981, Vol.119, at 300; Id., May 16,1981, at 314-315; letter from L. Douglas DeNike, to Viiss M. licore, April 22, 1981.
+,
"the entire continental United States... would be drenched in a bath of EMP."E The referenced letter of Deflike alleges that one or two explosions would result in "the meltdown of all operating nuclear stations."E tiowhere in the materials relied upon by OCRE is there any reference to a peculiar vulnerability of the Perry plant to Et1P.
As a result, OCRE has failed to nake a prima facie showing that there exists any special circumstances with respect to this particular proceeding.
In fact the infonnation cited by OCRE strongly suggests that the issue is of generic concern potentially affecting all nuclear power plants.
For this reason alone, the petition should be denied.
OCRE has also failed in its attempt to show that the purposes for adopting 10 C.F.R. 6 50.13 would not be served by its application in this proceeding.
OCRE has argued that the purposes of 10 C.F.R. 6 50.13 are H/ Science News, liay 9,1981, supra, at 301.
16] Letter from DeNike, supra.
served only when it is impractical to design a nuclear power plant to withstand an enemy attack. Contending that nuclear plant can be hardened against EMP, OCRE concludes that the purposes of 10 C.F.R. 6 50.13 would not be served by its application in this proceeding.
OCRE misreads the purposes of 10 C.F.R. 9 50.13. Interpreted in its entirety, the Statement of Considerations accompanying 9 50.13 has as its underlying purpose to codify in the Commission's rulci the practice of not requiring design features against enemy attack, because "the protection of the United States against hostile enemy acts is a responsibility of the nation's defense establishment and of the various agencies having internal security functions."ll/ The Statement indicates that several factors underlie this practice, only one of which is "the recognition that reactor design features to protect against the full range of the modern arsenal of weapons are simply 'not practicable."18/ The lengthy list of additional factors underlying the Commission's policy on national security threats compels the conclusion that no one of these factors should be seen as the regulation's " purpose." The other factors cited by the Commission include the range of weapons which need be defended against, the large number of vital structures which would be vulnerable to attack, the speculative nature of the threat against which the plant would have to be designed, the sensitivity of the information relevant to such problems and their remedies, and the primacy of the defense establishment as 12/ 32 Fed. Reg.13445 (September 26, 1957).
~~~18/ Id. Nowhere in either the Statement or the rule is a distinction made Eetween design features which are " practicable" and those which are not.
the safeguard against those attacks which would endanger the plant.E In shcet, by failing to show how one of many factors justifying a
- particular Commission practice can be interpreted as "the purposes for adoption of $ 50.13,"E OCRE has also failed to show how the application of that rule in this proceeding would not serve its purpose.
IV. CONCLUSION For the reasons' stated above, the petition of OCRE for a waiver of 10 C.F.R. 50.13 of the Commission's rules should be denied, as required by 2.758(c). The appropriate mechanism is that already followed by the Licensing Board in referring this subject to the Commission for such consideration as it may deem warranted.
Respectfully submitted, H
Ja.es H. Thessin Counsel for NRC Staff Dated at Bethesda,fiaryland this 23rd day of November, 1981 19/ Id.
20/ OCRE Petition, supra, at 1.
OCRE's suggestion that it would be appropriate to have discovery on "how costly and how practicable [would be] the incor-poration of an EMP defense into the PNPP design" should be rejected.
2.75B(a) expressly prohibits such discovery.
o UNITED STATES OF AftERICA NUCLEAR REGULATORY C0 NISSION BEFORE THE AT0!!IC SAFETY AND LICENSING BOARD In the Itatter of CLEVELAfl0 ELECTRIC ILLUltINATING
)
- Docket Nos. 50-440 OL COMPANY, ET AL.
50-441 OL (Perry Nuclear Power Plant, Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of " RESPONSE OF NRC STAFF TO PETITION OF OHIO CITIZENS FOR RESPONSIBLE ENERGY FOR WAIVER OF COMMISSION RULE" in the above-captioned proceeding have been served on the followin'g by deposit in the United States mail, first class, or, as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 23rd day of November, 1981:
- Peter B. Bloch, Esq., Chairman Donald T. Ezzone, Esq.
Administrative Judge Assistant Prosecuting Attorney Atonic Safety and Licensing Board 105 Main Street U.S. Nuclear Regulatory Canmissien Lake County Administration Center Washington, D.C.
20555 Painesville, Ohio 44077
- Dr. Jerry R. Kline Tod J. Kenney Administrative Jucge 228 South College Apt. A Atomic Safety and Licensing Board Bowling G een, Ohio 43402 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Daniel D. tiilt Wegman, Hr.siler & Vanderberg
- Mr. Frederick J. Shon 7301 Chir,pewa Road, Suite 102 Administrative Judge Brecksville, Ohio 44141 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Jeff Alexander Washington, D.C.
20555 920 Wilmington Avenue Dayton, Ohio 45420 Jay Silberg, Esq.
Shaw, Pittman, Potts, Trowbridge Terry Lodge, Esq.
& Madden Attorney fot-Intervenors 1800 M Street, N.W.
915 Spitzer Building Washington, D.C.
20035 Toledo, Ohia 43604
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- Atomic Safety and Licensing Board Robert Alexander U.S. Nuclear Regulatory Commission OCRE Interim Representative Washington, D.C.
20555 2030 Portsmouth St. #2 Houston, Texas 77098
- Atonic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Cacketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 04sJk1
__JgfesH.Thessin Counsel for NRC Staff O